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Judge Bars Key Prosecution Witness from Testifying at Ghailani Trial

Wednesday, October 06, 2010

The first civilian trial for a Guantanamo Bay detainee was delayed Wednesday after a Manhattan federal judge barred prosecutors from calling one of their most important witnesses.

The government learned the identity of the witness only after interrogating the defendant, Ahmed Khalfan Ghailani, while he was being held in secret CIA detention centers between 2004 and 2006. Prosecutors told Judge Lewis Kaplan to assume that everything Ghailani said while in CIA custody was coerced.

Based on that assumption, Kaplan wrote in his summary order, the Constitution does not permit the witness' testimony unless the government proves the connection between Ghailani's coerced statements and the witnesses' testimony is "sufficiently remote or attenuated."

"The Court has not reached this conclusion lightly," Kaplan wrote. "It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not when it is convenient, but when fear and danger beckon in a different direction."

Prosecutors immediately asked to postpone the trial -- including jury selection -- so they could reconsider their strategy. It is not certain prosecutors will appeal the ruling. Kaplan granted the request and told prospective jurors to return next Tuesday.

Opening arguments for Ghailani's trial were set to begin today. He's accused of conspiring in the 1998 bombings of two U.S. embassies in East Africa. The attacks killed 224 people, including a dozen Americans.

Prosecutors say the witness, Hussein Abebe, sold Ghailani hundreds of pounds of TNT that was used to blow up the U.S. embassy in Dar es Salaam, Tanzania. The government had told the court that Abebe voluntarily agreed to testify against Ghailani. But Kaplan ruled that the government "failed to prove Abebe's testimony is sufficiently attenuated from Ghailani's coerced statements."

Kaplan also noted that Ghailani's status as an enemy combatant "probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case."

Outside the courthouse, defense lawyer Peter Quijano said the judge's ruling represented a significant victory for the Constitution.

"This case will be tried upon lawful evidence," said Quijano, "not torture, not coercion."

The defense had tried to wholly dismiss the indictment on the grounds that Ghailani's right to a speedy trial was violated and because of alleged mistreatment by the CIA while he was held. But Kaplan rejected both arguments.

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Ailsa Chang is an award-winning journalist who covers criminal justice, terrorism and the courts for WNYC. She found her way into public radio after practicing law for five years, and can definitely say that walking the streets of New York City with a microphone is a lot more fun than being holed up in the office writing letters to opposing counsel.